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Court of Appeals decision


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Opinion from the Minnesota Court of Appeals regarding parental-rights termination of Brian and Charity Miller.

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Court of Appeals decision

  1. 1. This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010). STATE OF MINNESOTA IN COURT OF APPEALS A12-0536 A12-0645 In the Matter of the Welfare of the Children of: C. L. M. and B. D. M., Parents. Filed August 27, 2012 Affirmed Schellhas, Judge Mower County District Court File No. 50-JV-11-3019Daniel T. Donnelly, Donnelly Law Office, Austin, Minnesota (for appellant C.L.M.)M. Thomas Lenway, Lenway Law Office, Austin, Minnesota (for appellant B.D.M.)Kristen Nelsen, Mower County Attorney, Christa Marie Daily, Aaron Michael Jones,Assistant Mower County Attorneys, Austin, Minnesota (for respondent)Thomas J. Nolan, Jr., Minneapolis, Minnesota (for guardian ad litem) Considered and decided by Stoneburner, Presiding Judge; Ross, Judge; andSchellhas, Judge. UNPUBLISHED OPINIONSCHELLHAS, Judge In this case to which the Indian Child Welfare Act applies, appellant-parentschallenge the district court’s termination of their parental rights to their two sons, arguingthat the district court erroneously concluded that respondent-county engaged in activeefforts to reunify them with their children. We affirm.
  2. 2. FACTS In late April 2011, the Mower County Department of Human Services (the county)petitioned to terminate the parental rights of appellants B.D.M. and C.L.M. over theirchildren, T.F., born February 28, 2003, and E.M., born August 22, 2005. C.L.M. is aregistered member of the Cherokee Nation, which is a federally recognized tribalorganization under the Indian Child Welfare Act (ICWA). T.F. is a registered member ofthe Cherokee Nation, and E.M. is eligible for membership as a biological child of theCherokee Nation. C.L.M. is the biological mother of both children. B.D.M. is thebiological father of E.M. The biological father of T.F. is unknown. In April 2011, the county received a report that appellants were chaining the boysto a crib and depriving them of food. E.M. informed one of the county’s child-protectionworkers that “Mommy or Daddy will put the chain on his leg, that the chain has a key,and . . . that it goes on the fence around his bed, and that he has to have a chain becausehe’s naughty and he gets up at night and steals food.” Upon entering E.M.’s bedroom, aninvestigator with the county sheriff’s office smelled the “absolutely overpowering” smellof urine; discovered an 18-inch chain that, when attached to E.M. and his crib was tooshort for E.M. to even “sit at the edge of the bed”; and discovered that E.M. slept on aurine-soaked “board.” T.F. informed the investigator that T.F. finds E.M. already chainedto his bed when T.F. comes home from school. T.F. informed a child-protection workerthat E.M. “has to wear the chain because he hasn’t learned to stay in bed and not stealfood” and that T.F. “was very proud . . . that he had learned not to get up and steal foodso [he] didn’t have to wear the chain anymore.” T.F. also informed the investigator that 2
  3. 3. T.F. is hungry “every day”; that E.M. cries when he is hungry and cries every day; andthat T.F. stole food at school because he was hungry. The investigator noted that T.F. was“[v]ery small . . . both in height and weight for a child his age.” When the child-protection worker took T.F. and E.M. out to eat, the boys ate their meals, ate the child-protection worker’s meal, and “proceeded to take all of the jellies and creamers and stuffthem into their pockets.” T.F. stated, “We might need them later.” In May 2011, in connection with their abuse of the children, appellants eachpleaded guilty to false imprisonment—unreasonable restraint of a child, a grossmisdemeanor; and malicious punishment of a child, a gross misdemeanor. The districtcourt dismissed other criminal charges, based on the parties’ plea agreement. On June 14,2011, appellants and Darcee Brooks, the county social worker assigned to their case,signed out-of-home placement plans that listed tasks for completion by appellants toensure that they adequately parent T.F. and E.M. and provide them with a safe homeenvironment. On July 21, 2011, the district court issued findings of fact, conclusions of law, andan order, adjudicating the children as children in need of protection or services butdenying the county’s petition to terminate parental rights because the county failed toprove that it engaged in active efforts to reunify appellants with the children. In its order,the court found that the county proved the following: (1) C.L.M. and B.D.M. havesubstantially, continuously, and repeatedly refused or neglected to comply with the dutiesimposed upon them by their parent-child relationship with T.F. and E.M.; (2) C.L.M. andB.D.M are palpably unfit to be parties to a parent-child relationship with T.F. and E.M.; 3
  4. 4. (3) T.F. and E.M. have experienced egregious harm while in the care of C.L.M. andB.D.M.; and (4) returning T.F. and E.M. to the care of C.L.M. and B.D.M. would resultin serious physical and emotional harm to both children. On July 22, 2011, appellants began to serve their sentences of incarceration fortheir convictions of false imprisonment and malicious punishment of their children.While incarcerated, appellants met with Brooks, the social worker, five times; Brooksresponded to numerous letters from B.D.M. regarding how he could satisfy the placementplan while incarcerated; Brooks assisted the parents’ completion of several goals in theirplacement plans; and Brooks engaged in weekly communications with the guardian adlitem (GAL) regarding this case. On November 28, 2011, the county filed anotherpetition to terminate appellants’ parental rights. On January 22, 2012, C.L.M. and B.D.M.were released from prison. After trial on the county’s second petition to terminate parental rights, the districtcourt took judicial notice of its June 2011 findings and issued findings of fact,conclusions of law, and an order on March 15, 2012, terminating appellants’ parentalrights to T.F. and E.M. Among other things, the court found that the county provedbeyond a reasonable doubt that it had engaged in active efforts to reunify the parents withtheir children. These appeals by C.L.M. and B.D.M. consolidated by this court follow. DECISION Appellants’ sole argument on appeal is that the district court’s termination of theirparental rights was erroneous because the county failed to engage in active efforts to 4
  5. 5. reunify them with T.F. and E.M. Appellate courts “give considerable deference to thedistrict court’s decision to terminate parental rights.” In re Welfare of Children of S.E.P.,744 N.W.2d 381, 385 (Minn. 2008). But appellate courts reviewing termination-of-parental-rights cases “closely inquire into the sufficiency of the evidence” and mustdetermine “whether the district court’s findings address the statutory criteria.” Id. Theparty petitioning to terminate parental rights to an Indian child bears the burden ofproving beyond a reasonable doubt that termination of parental rights is warranted. SeeMinn. R. Juv. P. 39.04, subd. 2(b) (“[I]n a termination of parental rights matter involvingan Indian child, the standard of proof is beyond a reasonable doubt.”); Matter of Welfareof Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (“The burden of proof is upon thepetitioner [for terminating parental rights] and is subject to the presumption that a naturalparent is a fit and suitable person to be entrusted with the care of a child.”). Under ICWA, a “party seeking to effect . . . termination of parental rights to[] anIndian child under State law” must exert “active efforts . . . to provide remedial servicesand rehabilitative programs designed to prevent the breakup of the Indian family and thatthese efforts have proved unsuccessful.” 25 U.S.C. § 1912(d) (2006); see also In reWelfare of Children of J.B., 698 N.W.2d 160, 165 (Minn. App. 2005) (“In Minnesotacourts, proceedings to terminate parental rights to an Indian child must comply with theIndian Child Welfare Act (ICWA).”). The active-efforts standard is “a standard higherthan the reasonable efforts required to reunify a family under Minn. Stat. § 260.012(c)”and requires the county to prove beyond a reasonable doubt that it engaged in “a rigorousand concerted level of case work that uses the prevailing social and cultural values, 5
  6. 6. conditions and way of life of the Indian child’s tribe to preserve the child’s family and toprevent placement of an Indian child.” In re Welfare of Child of E.A.C., 812 N.W.2d 165,174 (Minn. App. 2012) (quotation omitted), review denied (Minn. Mar. 27, 2012). Appellants argue that the county’s efforts to reunify them with T.F. and E.M. werenot active. We disagree, based on (1) the county’s reunification efforts; (2) testimonysupporting the sufficiency of those efforts; and (3) our “considerable deference” to adistrict court’s decision to terminate parental rights. S.E.P., 744 N.W.2d at 385 (regardingthis court’s “considerable deference”). The district court took judicial notice of the following findings from the June 2011termination-of-parental-rights proceeding. Brooks began serving as the county’s casemanager for appellants’ case in April 2011. In May 2011, Brooks met with appellants “todiscuss services [appellants] would need so they could be reunited with T.F. and E.M.,”and the three of them “developed a draft of an Out-of-Home Placement Plan.”Approximately three days later, Brooks discussed the proposed placement plan with aCherokee Nation Indian expert. Less than two weeks later, in June 2011, Brookscontacted appellants regarding the placement plan, “[t]he Plan was amended,” andBrooks met with appellants three days after that “to review a draft of the Plan,” of whichBrooks gave individual copies to appellants and faxed a copy to each of their attorneys.The placement plan recommended, among other things, that appellants (1) “prepare asafety plan and present it to [the county],” (2) “complete a parenting assessment,”(3) “complete a specific psychological evaluation,” and (4) “follow recommendations ofthe children’s therapist.” 6
  7. 7. The district court’s following findings are substantially supported by the record,and the record demonstrates that the county actively attempted to reunify appellants withT.F. and E.M., as particularly evidenced by the county’s regular contact with appellants.See Matter of Welfare of T.J.J., 366 N.W.2d 651, 656 (Minn. App. 1985) (concludingthat the record supported district court’s conclusion that county engaged in active effortsto reunify Indian family where county’s social worker was in contact with appellant-parent “on a monthly basis . . . with the goal of reuniting her with the children”). Thecourt found that Brooks twice assisted appellants to complete their child-safety plans,once when they first met in May or June 2011 to draft the placement plan, and once on oraround January 13, 2012, concerning necessary improvements to their safety plans. Thecourt further found that during appellants’ six-month incarceration, Brooks visited themfive times, arranged to have a therapist conduct their parenting assessments andpsychological evaluations, and provided appellants with a list of county-approvedtherapists in November 2011 to assist them in obtaining individual therapy. Moreover,B.D.M. testified that Brooks responded to numerous letters from him regarding “what[he] could do while [he] was incarcerated to still stay within the case plan and to followwhat [he] needed to do [to] work through the case plan.” And T.F.’s and E.M.’s GALtestified that he discussed this case with Brooks “at least weekly . . . maybe in person oron the phone or via e-mail.” Testimony regarding the county’s reunification efforts supports the district court’sconclusion that the county’s efforts were active. In compliance with ICWA, a tribalexpert witness testified regarding the county’s petition to terminate parental rights and the 7
  8. 8. children’s welfare. Based on the tribal expert’s 22 years of experience as a tribal childwelfare worker, substantial knowledge in tribal customs relating to the social and culturalstandards and childrearing practices of the Cherokee Nation, and a review of the case file,the tribal expert opined that “active efforts were achieved,” noting that there are no otherservices available to assist appellants, T.F., and E.M. The GAL testified that “there are[not] attempts at reunification that are possible at this time that are not being made,”explaining that he had not “referred [T.F. and E.M.] for any services” because “[t]heservices I would have recommended for the children have all taken place.” And T.F.’sand E.M.’s psychiatrist testified that “there is [not] anything that can be done,programming, services with the boys at this time, that could . . . reunify these childrenwith their parents.” Moreover, the district court found and the record substantially supports thatappellants’ therapist testified that B.D.M. is “incapable” of developing necessaryparenting skills because “he does not take responsibility for his actions” and “the childrenwill suffer even more harm if they are returned to his care.” The court also found and therecord substantially supports that the intensive therapy necessary to reunify appellantswith their children would take a minimum of nine months to one year and could beindefinite, with appellants’ relationship with T.F. and E.M. never improving because thechildren have no bond or attachment with appellants. Nothing in the record supports afinding that additional active efforts would lead to reunification between appellants andT.F. and E.M. 8
  9. 9. Appellants argue that various facts in the record indicate that the county’s effortsto reunify them with T.F. and E.M. were not active, stressing that Brooks did not meetwith them regarding the development of their child-safety plans between May orJune 2011 and January 2012 and that the county provided them insufficient assistance tobegin individual therapy. Appellants’ arguments are unpersuasive in consideration of theevidence demonstrating the county’s active reunification efforts, testimony corroboratingthat the county engaged in active reunification efforts, and this court’s “considerabledeference” to a district court’s decision to terminate parental rights. Id. Affirmed. 9